Case 1 :05-cv-01458-UNA-AK Document 51 Filed 07/25/2008 Page 1 of 42
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE:
GUANTANAMO BAY
DETAINEE LITIGATION
Misc. No. 08-442 (TFH)
Civil Action Nos.
02-CV
04-CV
04-CV
04-CV
05-CV
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05-CV
06-CV
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06-CV
07-CV
08-CV
08-CV
-0828,
-1194,
-2022
-2215
-0270,
-0359,
-0520,
-0634,
-0764,
-0881
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-0995
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-1220,
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08-CV
08-CV
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-2035
-0023
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-0392
-0526,
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-1124,
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-1983
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-1688,
-1758
-1765
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-0987
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-1207
04-CV
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05-CV
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05-CV
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-1429,
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-1592,
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-1639,
-1649,
-1725,
-2010,
-2104,
-2186,
-2249,
-2371,
-2380,
-2385,
-2398,
-2479,
-1674,
-1690,
-1759,
-1766,
-2337,
-1085,
-1153,
Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 2 of 42
GOVERNMENT'S BRIEF REGARDING PROCEDURAL FRAMEWORK ISSUES
INTRODUCTION AND SUMMARY
Pursuant to Boumediene v. Bush, 128 S. Ct. 2229 (2008), this Court has ordered
expedited review in over 200 constitutionally- derived habeas cases filed by aliens captured
abroad and detained as enemy combatants at the United States Naval Station at Guantanamo
Bay, Cuba. In its order of July 11, 2008, the Court ordered the parties to brief the following
issues relating to the procedural framework for these wartime constitutional habeas actions: the
burdens borne by the respective parties; the scope of discovery; the standard for obtaining an
evidentiary hearing; the application of confrontation and compulsory process rights; and the
standard governing hearsay evidence. These issues are closely related and their resolution turns
on a common core of legal principles that govern the unique circumstances of the cases now
before the Court. Those principles provide overarching guidance for tiie cases under
consideration.
For habeas review of wartime status determinations, the Supreme Court has stressed that
any "factfinding process" must be "prudent and incremental." Hamdi v. Rumsfeld, 542 U.S. 507,
539 (2004) (plurality); see also Boumediene, 128 S. Ct. at 2276 ("In considering both the
procedural and substantive standards used to impose detention to prevent acts of terrorism,
proper deference must be accorded to the political branches."). Pursuant to Hamdi, it is the
Government's burden to present, in its return, sufficient credible evidence to establish that a
petitioner is properly held as an enemy combatant. Although petitioners have no right to any
discovery, as part of its return, the Government will provide any evidence that tends materially
to undermine information presented in the return to support the petitioner's classification as an
enemy combatant, which the attorneys preparing tire factual return encounter in developing the
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return. Upon the filing of the Government's return, a petitioner may question the sufficiency of
the Government's showing and supplement the record with his own evidence. After rebuttal
submissions, the Court may then determine whether the evidence adequately establishes
petitioner's enemy combatant status.
Under the historical habeas practice constitutionalized in the Suspension Clause,
moreover, any discovery obligation that could conceivably be appropriate in this setting (which
would amount to constitutionally-compelled process for wartime status determinations), will be
readily satisfied by the Government's provision of material exculpatory evidence as set forth
above.' For a "pojdent and incremental" process, the Court should not even consider fuither
discovery until it reviews the returns and traverses in individual cases. And even if the Court
then concludes that more factfinding may be necessary (historical habeas practice
notwithstanding), it should still reject wholesale the liberal discovery standards set forth in the
Federal Rules of Civil Procedure (v\Mch are generally in^Dplicable even to modem statutory
habeas proceedings outside the context of vvaitirne status deteniiinations). See Harris v. Nelson,
394 U.S. 286, 292-98 (1969). Rather, it should provide that any discovery request must be
approved by the Court and must be predicated on a strong and particularized showing of need.
Any such discovery must also take account of the exigencies posed by ongoing warfare and the
responsibilities of potential witnesses. As this Court has recognized, "[t]he discovery process
alone risks aiding our enemies by affording them a mechanism to obtain what information they
^"Exculpatory" in this context does not refer to information that exculpates a detainee
from criminal liability, inasmuch as the issue of criminal liability is not material to the authority
of the Department of Defense to detain the petitioners in these cases. Rather, it refers to evidence
that tends materially to undermine the information presented in the return to support the
petitioner's classification as an enemy combatant.
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could about military affairs and disrupt command missions by wresting officials from tiie
battlefield to answer compelled deposition and other discovery inquiries." In re Iraq and
Afghanistan Detainees Litigation, 479 F. Supp. 2d 85, 105 (D.D.C. 2007) (Hogan, J.).
Likewise, the presentation of live testimony at an evidentiary hearing is generally
inappropriate even under modem statutory habeas practice, and is certainly not constitutionally
mandated for wartime status determinations. No constitutional or evidentiary standard prohibits
the Court from relying on the paper record submitted by the parties in finding facts. A "prudent
and incremental" approach would require the Court to consider the parties' written submissions
first, before even considering whether to receive live testimony. Moreover, any testimony
presented directly to the Court would present enormous logistical difficulties in the context of
concurrent and expedited proceedings in over 200 cases involving detainees captured in wartime
at locations around the world. Indeed, this sort of evidentiary hearing would make expedition of
these cases impossible. Under controlling Supreme Court precedent, an evidentiary hearing in
this context is appropriate only when, absent a hearing, the weight of the evidence supports the
petitioner.
By its terms, the Sixth Amendment is inapplicable to these civil habeas proceedings.
Thus, neither the Confrontation Clause nor the Compulsory Process Clause presents any obstacle
to proceeding on a paper record. Moreover, even if live testimony were otherwise appropriate,
petitioners could not properly summon military servicemembers or intelligence officers from
their urgent and ongoing duties in the ongoing war. Furthermore, the courts lack authority to
order the admittance of aliens held as enemy combatants at a secure military base in Cuba into
the United States to appear live at hearings. Such an extraordinary order would also be
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imprudent and unnecessary, as video or phone conferencing could also allow live testimony by
detainees in any event.
Finally, under controlling Supreme Court precedent, the Court plainly may consider
hearsay evidence in these proceedings and this Court should hold that it is admissible. Indeed, it
is readily apparent that in many cases both petitioners and the Government will have no choice
but to rely upon hearsay for their best evidence. The issue is not whether such evidence should
be considered, but the weight it should be accorded. That is a determination that must be made
on a case- by-case basis. In making such determinations, "the Constitution would not be
offended by a presumption in favor of the Government's evidence." Hamdi, 542 U.S. at 534.
DISCUSSION
I. THE COURT SHOULD ENTER AN ORDER IMPLEMENTING THE
PROCEDURES AND METHODOLOGY SET FORTH IN THE CONTROLLING
PLURALITY OPINION IN HAMDI
A. Hamdi Provides the Appropriate Framework for These Proceedings.
The "capture and detention of lawful combatants and the capture, detention, and trial of
unlawful combatants, by 'universal agreement and practice,' are 'important incident[s] of war.'"
Hamdi, 542 U.S. at 518 (quoting Quirin, 317 U.S. at 28); accord id. at 587-88 (Thomas, J.,
dissenting) } While, to be sure, federal courts have "ieview[ed] applications for habeas relief in
a wide variety of cases involving executive detention, in wartime as well as in times of peace,"
Rasul V. Bush, 542 U.S. 466, 474 (2004), the scope of review has been particularly limited in
^ Although Justice Thomas disagreed with the ultimate resolution in Hamdi, his opinion
provides a broader rationale than Justice O'Connor's four-justice plurality for the lawful
detention of enemy combatants. Thus, under the rationale of Marks v. United States, 430 U.S.
188, 193 (1977), the plurality is the controlling opinion inHamdi, and is binding on this Court.
Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 6 of 42
cases dealing with the mihtary in periods of armed conflict. See Burns v. Wilson, 346 U.S. 137,
139 (1953) ("[I]n military habeas corpus the inquiry, the scope of matters open for review, has
always been more narrow than in the civil cases.").
These cases present the question of what habeas procedures are constitutionally
compelled to review the continued detention of aliens captured and detained abroad as enemy
combatants. For that question, tiie most relevant precedent is Hamdi. In tiiat case, the Supreme
Court established a framework for adjudicating statutory habeas petitions filed on behalf of
citizens detained in the United States as enemy combatants. A fortiori, these procedures are
more than sufficient in the context of constitutional habeas actions filed by aliens detained as
enemy combatants in Cuba.
First, the Hamdi framework implemented modem statutory habeas under section 2241;
because the Military Commissions Act (MCA) repealed that provision for aliens held as enemy
combatants, the procedures here should contain only those required by the Suspension Clause
itself, as identified inBoumediene and as reflected in longstanding historical habeas practice.
Although Boumed/ene did not specify the precise procedural rules for constitutional habeas
proceedings involving wartime status determinations for aliens captured and held outside the
United States, see 128 S. Ct. at 2271, the Court did identify certain elements that are
"constitutionally required," id. at 2270. Because the MCA eliminates statutory habeas for these
petitioners in its entirety, and is unconstitutional only to the extent that the Suspension Clause
mandates habeas review in this context of its own force, the only appropriate procedures are
those required by the Constitution itself. Id. at 2278 (Souter, J., concurring) ("Subsequent
legislation eliminated the statutory habeas jurisdiction over these claims, so that now there must
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be constitutionally based jurisdiction or none at all.")- Moreover, Boumediene explicitiy "[did]
not hold" that constitutional habeas proceedings for wartime status determinations must
duplicate statutory proceedings under § 2241 and modem habeas practice. 128 S. Ct. at 2267,
2274. Thus, while the procedures afforded under the modem habeas statute and mles might
define a ceiling of protection, they clearly do not define a floor.
Second, because aliens are entitled to lesser (and certainly not greater) constitutional
protections than citizens like Hamdi, the framework that the Supreme Court deemed
constitutionally sufficient for citizens held as wartime enemy combatants is more than
constitutionally adequate for aliens captured under similar circumstances and detained as
wartime enemy combatants. The proposition that citizens and no n- citizens may be extended
different constitutional protections is well established. See, e.g., United States v.
Verdugo-Urquidez, 494 U.S. 259, 273 (1990). Cf. Mathews w.Diaz, 426 U.S. 67, 79-80 (1976)
("In the exercise of its broad power over naturalization and immigration. Congress regularly
makes rules that would be unacceptable if applied to citizens."). Boumediene, does not affect
this bedrock principle. Simply put, if the Hamdi framework was sufficient for a citizen, it
necessarily must be good enough for an alien - particularly if, as in Hamdi, the detainee was
captiired outside tiie United States. SeeAl-Marri v. Pucciarelli, - F.3d - , 2008 WL 2736787,
*42 (4th Cir. July 15, 2008) (Traxler, J., concurring) (recognizing that many of the exigencies
underiying the rationale in Hamdi emerge, in part, from the extraterritorial capture). Indeed, for
this reason, as the controlling plurality recognized in Hamdi, "the full protections that
accompany challenges to detentions in other settings may prove unworkable and inappropriate in
the enemy- combatant setting." Hamdi, 542 U.S. at 535. Habeas review accommodates such
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limitations because the writ's "precise application . . . change[s] depending upon the
circumstances." Boumediene, 128 S. Ct. at 2267.
Third, because the petitioners are at a location where lesser constitutional protections
apply than was the citizen in Hamdi, the framework that the Supreme Court found appropriate
for a citizen held in the United States must necessarily be sufficient. Hamdi' s procedural
framework was sufficient for a detainee held in the United States, where the Constitution applies
with full force. This case, on the other hand, involves a detainee held in Cuba, where the
Constitution has diminished application under a multi-factor test. See Boumediene, 128 S. Ct. at
2259. It is a debatable proposition which specific constitutional provisions apply at Guantanamo
and to what extent they apply, but obviously the protection provided by the Constitution is not
more extensive than it was in Hamdi, where the detention was in the United States. Thus, in this
respect as well, the Hamdi procedures a fortiori provide constitutionally- adequate procedures for
habeas review.
The Hamdi framework is fully consistent with the constitutionally-required elements of
habeas identified by Boumediene. Under Boumediene, a constitutional habeas court must have
"some authority to assess the sufficiency of the Government's evidence against the detainee."
128 S. Ct. at 2270. It also must "have the authority to admit and consider relevant exculpatory
evidence that was not introduced during the earlier proceeding." Ibid, (concluding that it is
"constitutionally required" that petitioners have the opportunity "to supplement the record on
review"). The procedural framework in Hamdi provides the necessary elements of habeas
review that, according to Boumediene, "accords with [the] test for procedural adequacy in the
due process context." Id. at 2268 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). In
-7-
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sum, the Hamdi framework allows this Court to assess the sufficiency of the evidence and allows
the petitioners to submit their own evidence (and, of course, the Hamdi framework allows this
Court to address legal issues raised by petitioners). Indeed, it would be startling if the
Suspension Clause, which primarily preserves jurisdiction and a cause of action to challenge
detention, of its own force mandated adjudicatory procedures beyond those required by the Due
Process Clause itself.
Hamdi also is a vital precedent on the procedures to be employed in habeas even though
the Boumediene Court concluded that Hamdi had not approved of Combatant Status Review
Tribunal-type administrative procedures as being an adequate habeas substitute. See 128
S. Ct. at 2269-70. Boumediene did not address all of the procedures to be employed and did not
hold that the Hamdi framework was inappropriate for federal court habeas proceedings.
Moreover, Boumediene disclaims addressing what procedures are required in these cases,
leaving Hamdi' s analysis untouched. See id. at 2277 ("It bears repeating that our opinion does
not address the content of the law that governs petitioners' detention."); id. at 2276 (the
"remaining questions are within the expertise and competence of the District Court to address in
the first instance"). Because the four-justice plurality opinion inHamdi authored by Justice
O'Connor is the controlhng opinion, see Marks, 430 U.S. at 193; see also supra, note 2, it is
therefore binding on this Court. SeeAgostini v.Felton, 521 U.S. 203, 237-38 (1997) ("[i]f a
precedent of this Court has direct application in a case, yet appears to rest on reason rejected in
some other line of decisions, the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own decisions").
Under Hamdi' s framework, citizen enemy combatants are entitled to the "core"
-8-
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protections that constitute the "minimum requirements of due process." Hamdi, 542 U.S. at 535,
538. These core procedural rights are threefold: first a detainee "must receive notice of the
factual basis for his classification"; second, a detainee must have "a fair opportunity to rebut the
Government's factual assertions"; and, third, the hearing must occur "before a neutral
decisionmaker." Id. at 533. No more can be required as applied to alien enemy combatants
captured abroad. Indeed, Boumediene did not upset the well-established holding that the Fifth
Amendment and other individual rights secured by the Constitution do not apply to alien enemy
combatants lacking any voluntary connection to the United States. See Verdugo-Urquidez, 494
U.S. 259; Johnson v. Eisentrager, 339 U.S. 763, 783 (1950).
Third, adopting the Hamdi framework provides the appropriate balance between an alien
detainee's right under Boumediene to challenge his continued detention with the Government's
competing legitimate interests. In Hamdi, as inBoumediene, the Court anticipated that
petitioners challenging their status as enemy combatants, like other habeas petitioners, "would
have some opportunity to present and rebut facts" but noted that courts could "vary the ways in
which they do so as mandated by due process." Hamdi, 542 U.S. at 526. Therefore, in assessing
what process is constitutionally required for evaluating the detainee's habeas petition, the Hamdi
plurality applied the balancing test from Mathews v. Eldridge, under which "'the private interest
that will be affected by the official action'" is balanced "against the Government's asserted
interest, 'including the function involved' and the burdens the Government would face in
providing greater process." 542 U.S. at 529 (quoting Mathews, 424 U.S. at 335). On the one
side of the balance, the Court weighed the detainee's liberty interest in being free from physical
detention. Ibid. "On the other side of the scale are the weighty and sensitive Governmental
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interests in ensuring that those who have in fact fought with the enemy during a war do not
return to battle against the United States." Id. at 531. In addition, the Court considered the
burdens additional procedures "may impose on the military" in the context of ongoing hostilities.
Id. at 533; see id. at 536 ("[0]ur due process assessment must pay keen attention to the particular
burdens faced by the Executive in the context of military action."). Boumediene is fully
consistent in expressing concern that "it does not follow that a habeas corpus court may
disregard the dangers the detention in these cases was intended to prevent" and that "[c]ertain
accommodations can be made to reduce the burden ... on the military." 128 S. Ct. at 2276.
Thus, the Hamdi plurality recognized that "the exigencies of the circumstances may
demand that aside from the[] core elements [of notice and an opportunity to rebut the
Government's factual assertions], enemy-combatant proceedings may be tailored to alleviate
their uncommon potential to burden the Executive at a time of ongoing military conflict." Ibid.
Similar concerns are present given the analogous circumstances, such capture outside the United
States, between the citizen- detainee in Hamdi and the alien- detainees here. The Hamdi plurality
thus explained, for example, that "[h]earsay . . . may need to be accepted as the most reliable
available evidence from the Government in such a proceeding." Id. at 533-34. Similarly, the
Boumediene Court, while not providing an exhaustive explanation of permissible procedures,
recognized that similar accommodations would need to be made. For example, Boumediene
noted that "the Government has a legitimate interest in protecting sources and methods of
intelligence gathering; and we expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possible." 128 S. Ct. at 2276.
In light of these competing interests, and to provide a workable mechanism to balance
-10-
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them, as well as to address the unique separation- of- powers concerns presented by enemy
combatant litigation, the Hamdi plurality endorsed a "burden- shifting scheme" under which the
Government has the initial burden to "put[] forth credible evidence that tiie habeas petitioner
meets the enemy- combatant criteria." Id. at 534. The plurality noted that "the Constitution
would not be offended by a presumption in favor of the Government's evidence, so long as tiiat
presumption remained a rebuttable one and fair opportunity for rebuttal were provided." Ibid.
Under such a scheme, following a showing of credible evidence by the Government, the burden
would "shift to the petitioner to rebut that evidence with more persuasive evidence that he falls
outside the criteria." Ibid. This approach "meet[s] the goal of ensuring that [any wrongly
accused person] has a chance to prove military error while giving due regard to tiie Executive
once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy
combatant." Ibid. These Hamdi procedures, which the Court explained are constitutionally
sufficient for habeas proceedings involving U.S. citizens detained as enemy combatants in the
United States, are a fortiori constitutionally sufficient for habeas procedures involving ahens
detained as enemy combatants outside the United States. And because the procedures are
spelled out by the Supreme Court, they are binding on this Court.
B. AC onsolidated rder Implementing tiie Ha mdi Framework Is W arranted and
Appropriate.
While the foregoing establish why the Court is obligated to follow the general Hamdi
procedural framework as a matter of law, the practical considerations for this Court's orderly
management of several hundred habeas petitions present compelling reasons as to why the Court
ought to adoptHamdi's framework. Many procedural aspects of this case are amenable to
coordinated resolution and the habeas process will greatly benefit from such a resolution. Most
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of the cases share a core of critical commonalities: all are brought under the constitutional writ
of habeas corpus; all involve executive wartime detention; all of the petitioners are detained
because tiiey are enemy combatants in the conflict with the Taliban, al Qaeda, and associated
forces; all of the petitioners were apprehended overseas; and all are being detained at
Guantanamo Bay, Cuba. Not only is the Hamdi framework the appropriate one to be applied in
these circumstances, an order concretely applying that framework to these many similar cases is
called for.
The questions presented by the Court's order - the scope of discovery; the standard for
obtaining an evidentiary hearing; the standard governing hearsay; the application of
confrontation and compulsory process rights; and the relevant standards of proof and burdens of
production and persuasion, and any burden shifting - are each common procedural issues that
will apply in each case. There is a congressional policy favoring the coordinated resolution of
common issues that arise in cases involving common issues if doing so serves the goal of
efficiency, as the statute authorizing consolidation and coordination of multidistrict litigation
recognizes. See 28 U.S.C. § 1407. In enacting that statute. Congress explained that it was meant
to "assure uniform and expeditious treatment in the pretrial procedures in multidistrict
litigation." H.R. Rep. No. 90-1130, reprinted in 1968 U.S.C.CA.N. 1898, 1901 (1968). As the
Ninth Circuit has explained in discussing multi-district litigation, "[cjoordination of . . . many
parties and claims requires that a district court be given broad discretion to structure a procedural
framework for moving the cases as a whole as well as individually." In re Phenylpropanolamine
(PPA) Products, 460 F.3d 1217, 1231-32 (9th Cir. 2006).
While this is not multi-district litigation under Section 1407, a similar analysis calls for
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coordinated resolution: there are many parties here who are raising similar claims that call for
similar procedures. The procedural issues are purely legal issues, in the nature of a mlebook for
habeas proceedings of this nature. But of course, one does not need to know specific facts to
know the procedural rules for federal cases. In these cases, where the constitution supplies the
only jurisdiction, this Court will need to prescribe the basic procedural rules.
Addressing these issues separately in hundreds of individual actions does not make sense.
First, it would be wasteful and inefficient to brief common issues dozens of times before each of
the judges on this court. Second, without guidance on common procedural issues, the parties
cannot efficiently or effectively prepare for more than 200 proceedings. InBoumediene, the
Supreme Court recognized the need for coordination, explaining that "[i]f, in a future case, a
detainee files a habeas petition in another judicial district in which a proper respondent can be
served, the government can move for change of venue to the court that will hear [the
Boumediene] petitioners' cases, the United States District Court for the District of Columbia."
128 S. Ct. at 2276 (citation omitted). It would make little sense to "channel[] future cases to one
district court," id., if that court did not itself attempt to address common issues in a coordinated
fashion but instead left all common legal issues to be resolved in different ways by different
judges in individual cases.
Moreover, the lack of a coordinated approach would lead to severe delay to ultimate
resolution of these cases. Under petitioners' approach, the parties would be required to litigate
the same legal and procedural issues repeatedly in hundreds of cases before 15 individual judges.
There would very likely be disagreement in the procedural approach employed by individual
judges which would ensure a significant number of reversals and remands following appeal, and
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may very well delay proceedings by creating conflicts that require interlocutory appeal under 28
U.S.C. § 1292(b) to obtain from the court of appeals what tiiis Court can do now - issue an order
addressing "a controlling question of law" which, if resolved, "may materially advance tiie
ultimate termination of the litigation." Id. And absent interlocutory appeals, there will be even
greater delay over tiie long term. Widely conflicting rulings, arising from the use of different
procedures and different standards would necessarily ensure that there will inevitably be a
substantial number of reversals, and remands to the district court that will take years to resolve.
Indeed, in the past, these cases have led to divergent opinions on common issues followed by
lengthy appeals. See Boumediene, 128 U.S. at 2241. This Court has, though coordinated
rulings, an opportunity to avoid that outcome. Ultimately, declining to address common
procedural issues in a coordinated fashion will not only waste scarce judicial and party
resources, it will lead to the very delay that petitioners seek to avoid.
II. APPLICATION OF THESE PRINCIPLES TO THE CURRENT PROCEEDINGS.
The decisions mBoumediene and Hamdi thus provide a basic framework to govern tiiese
proceedings. The precise application of these principles may vary in certain cases. But it is
essential that the Court establish general baseline principles to make possible the expedited
consideration of the scores of pending cases.
A. The Parties' Respective Burdens.
The burden- shifting framework proposed by the Government seeks to address the special
circumstances of these cases. Cf. Hamdi, 542 U.S. at 534. It therefore differs from typical
habeas actions, where the petitioner alone generally bears the burden of proof. See Garlotte v.
Fordice, 515 U.S. 39, 46 (1995) ("[T]he habeas petitioner generally bears the burden of proof.");
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Eagles v. United States ex rel Samuels, 329 U.S. 304, 314 (1946) ("[Petitioner] had tiie burden
of showing that he was unlawfully detained."); Williams v. Kaiser, 323 U.S. 471, 472, 474
(1945) (similar); Walker w. Johnson, 312 U.S. 275, 286 (1941) (similar); Johnson w.Zerbst, 304
U.S. 458, 468 (1938) (similar).
The process in each of these cases begins with the Government's submission of a factual
return that "puts forth credible evidence that the habeas petitioner meets the enemy-combatant
criteria." Hamdi, 542 U.S. at 534; see Order of July 11, 2008 (directing submission of factual
returns). The Government's production of evidence gives the petitioner full "notice of the
factual basis for his classification." Id. at 533. In addition to making the "credible evidence" on
which the Government relies part of the record, any material exculpatory evidence discovered by
the attorneys preparing the Government's return will be provided to the petitioner or petitioner's
counsel, as is more fully addressed in the next section.
If the Government files a return supported by credible evidence, the burden shifts to the
petitioner to rebut, "with more persuasive evidence," the Government's classification. Hamdi,
542 U.S. at 534.^ TTis affords the pditioner "a fair oppoiturdty to idxit the Govemn]^
factual assertions before a naitral decisionmaker," id. at 533, and gives tiie Court a chance "to
admit and consider relevant exculpatory evidence that was not introduced during the earlier
proceeding." Boumediene, 128 S. Ct. at 2270. The parties should then have the opportunity to
brief the legality of detention based on the record and to make arguments as to the credibility and
weight of the evidence presented. However, if a petitioner is unable to overcome the
Government's evidence, no further steps need be taken and the Government prevails.
^The petitioner may also file a motion for judgment at this stage.
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B. Availability of Discovery.
1. There is no significant history of discovery in habeas proceedings and discovery is
certainly not constitutionally required. The point of habeas is to provide the court with evidence
to justify the detention (and to provide petitioners the opportunity to submit their evidence that
detention is unlawful), Boumediene, 128 S. Ct. at 2770; the purpose is not to provide alien
enemy detainees an opportunity to obtain additional materials from the Government in a time of
war that go beyond that showing.
Even outside the context of wartime status determinations, there is no significant history
of discovery in habeas cases prior to 1969, and there has never been a suggestion that the
Constitution requires discovery in such proceedings. See Harris v. Nelson, 394 U.S. 286, 293
(1969) (in concluding that Federal Rules of Civil Procedure on discovery do not apply to habeas
proceedings, explaining that "prior to [the promulgation of the federal rules in] 1938" there was
no showing made that "discovery was actually being used in habeas proceedings").* Infect, it
was "not until marry years later" that factual questions were even considered in federal habeas
cases, making it inconceivalie that discovery would be an essential conpjnent of the writ Id . at
295.
Thus, in these constitutionally-based habeas proceedings, there can be no question that
the relevant settled habeas practice - not only in 1789, but for almost two centuries thereafter -
would preclude discovery. See id. That habeas practice of 1789 did not contemplate discovery
or factfinding by the habeas petitioner is clear. Indeed, "[o]ne of the maxims of
^Indeed, in 1938, discovery was "one of the most significant innovations" in civil cases
generally. Id. at 295.
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eighteenth- century habeas corpus practice had been that the petitioner could not controvert the
facts stated in the return." Gerald L. Neuman, Habeas Corpus, Executive Detention, and the
Removal of Aliens, 98 Colum. L. Rev. 961, 986 n. 131 (1998) (citing, inter alia, R.J. Sharpe,
The Law of Habeas Corpus 61-68 (1976)). The facts alleged by the Executive to continue to
hold an individual "were to be taken as true, and the court was to determine whether the
justification was legally sufficient." Id. Even in executive detention cases, courts traditionally
conducted only limited factual review. See INS v. St. Cyr, 533 U.S. 289, 306 (2001) ("some
evidence" review). While courts from the period permitted the prisoner to "allege additional
facts consistent with the return that might rebut the appearance of justification," Neuman, 98
Colum. L. Rev. at 986 n. 131, that was not a constitutional requirement and certainly did not
suggest that discovery was ever appropriate. Indeed, Hamdi, itself specifically rejected the trial
court's anticipated discovery into various military affairs. Hamdi, 542 U.S. at 528, 532.
The Supreme Court has thus held, for example, that in view of the history of the writ and
the intended scope of the Federal Rules of Civil Procedure a petitioner does not have the right to
serve interrogatories on his custodian (although the Federal Rules would otherwise allow for
broad discovery in civil suits). Harris, 394 U.S. at 292-98. Significantly, in 1938, when the
federal rules were initially adopted, the expansion of statutory habeas corpus practice to its
present scope was only in its primordial stages. Mooney v. Holohan, 294 U.S. 103 (1935);
Johnson v.Zerbst, 304 U.S. 458 (1938); Waley v. Johnston, 316 U.S. 101, (1942). And it was
not until many years later that the federal courts considering a habeas corpus petition began to
even make an independent determination of the factual basis of claims that state convictions had
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violated the petitioner's federal constitutional rights.^ Brown v. Allen, 344 U.S. 443 (1953).
Thus, the notion that tiie Constitution, or traditional habeas practice as of 1789 or later, requires
any discovery to enemy combatant petitioners is demonstrably false.
That the Constitution did not require such innovations to the habeas practice of 1789 is
demonstrated by the need for subsequent legislation to expand factfinding authority of federal
courts, which did not occur until after the Civil War. See Act of Feb. 5, 1867, ch. 28, § 1, 14
Stat. 385 (stating that a "petitioner may deny any of the material facts set forth in the return, or
may allege any fact to show that the detention is in contravention of the constitution or laws of
the United States," and requiring the federal court to "proceed in a summary way to determine
the facts of the case, by hearing testimony and the arguments of the parties interested"). And it
was in 1890 that the Supreme Court, citing the Civil War era statute, held that the federal courts
could have a proper role in determining certain non-jurisdictional facts. Cunningham v. Neagle,
135 U.S. 1, 70-75 (1890). The statutory expansion of the factfinding role only proves the point
such functions are never constitutionally required. So too here. Alien detainees at Guantanamo
may be permitted to invoke 1789 habeas practice, but that does not entitle them to any discovery
against the Government, or anyone else. And while they may provide their own evidence and
version of events for this Court's consideration, any discovery they may be granted from the
G ovemment is a matter of Executive discretion rather than a constitutional entitlement.
^ "It is also of some relevance that in 1948, when Congress enacted 28 U.S.C. § 2246
expressly referring to the right of parties in habeas corpus proceedings to propound written
interrogatories, its legislation was limited to interrogatories for the purpose of obtaining evidence
from affiants where affidavits were admitted in evidence. Again, the restricted scope of this
legislation indicates that the adoption in 1938 of the Federal Rules of Civil Procedure was not
intended to make available in habeas corpus proceedings the discovery provisions of those
rules," Harris, 394 U.S. at 296, let alone that the Constitution requires any discovery at all.
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Modem developments in statutory habeas procedure cannot alter this constitutional
ceiling. Thus, it is of no moment that in Harris the Court interpreted the All Writs Act 28
U.S.C. § 1651, to authorize limited discovery in statutory habeas cases at the discretion of the
court. Indeed, the fact that discovery, even in modem statutory habeas cases, is entirely
discretionary, see Harris, 394 U.S. at 300, Habeas Rule 6(a), provides a complete answer to the
question whether it is constitutionally required. Moreover, recent developments in habeas
practice cannot alter the fact that there was no constitutional requirement for discovery in habeas
cases. The Suspension Clause cannot operate as a "one-way rachet that enshrines in the
Constitution every grant of habeas jurisdiction" conferred by statute or judge-made common law,
see St. Cyr, 533 U.S. at 341-42 (Scalia, J., dissenting), for if it did, then the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), which limited state prisoners' access to the writ,
would be unconstitutional, a proposition the Supreme Court rejected in Felker v. Turpin, 518
U.S. 651, 662-664(1996) ("judgmentsabouttheproperscopeof the writ are 'normally for
Congress to make' "). Thus, there is significant support for the historical approach to habeas as
providing the constitutional baseline. See Swain v. Pressley, 430 U.S. 372, 384-85 (1977)
(Burger, C J., concurring in part and concurring in the judgment); Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 47 U. Chi. L. Rev. 142, 170 (1970).
Congress' s repeal of habeas jurisdiction, in conjunction with the fact that constitutionally-
derived habeas corpus does not require discovery, is therefore fatal to the claim that discovery is
appropriate in these proceedings.
2. Although not constitutionally required, when filing its factual retums, the Govemment
will provide any evidence that tends materially to undermine information presented in the return
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tD support the petitioner's classification as an enemy combatant, which is encountered in
developing the returns by tiie attorneys preparing them (including the Department of Justice
attorneys assigned to the case and those Department of Defense attorneys working on the case
with them) } This voluntary disclosure will mate discovery from the Government unnecessary
under the governing precedents and background habeas principles. Indeed, to date, no discovery
has been allowed in the context of enen^^ combatant habeas cases. In Ha mdi , the Supreme C ourt
expressly rejected the imposition of a "process [that] would approach the process that
accompanies a criminal trial" including "quite extensive discovery of various military affairs."
Hamdi, 542 U.S. at 528; see id. at 532-33. In turn, Boumediene did not identify discovery as one
of the critical constitutionally-compelled elements of adequate habeas review, 128 S. Ct. at
2270, and instead rejected the notion that "[hjabeas corpus proceedings need . . . resemble a
criminal trial, even when the detention is by executive order." Id. at 2269. Accordingly, even
assuming any discovery were required or appropriate, Boumediene and Hamdi set down a clear
marker beyond which habeas discovery cannot properly extend, and which is far less
burdensome than the "extensive discovery" that is applicable to criminal proceedings. Hamdi,
542 U.S. at 528. The Government's voluntary disclosures clearly exceed that marker.
In domestic criminal proceedings, the Government's constitutional discovery obligation
is defined by the Brady v. Maryland, 373 U.S. 83 (1963), line of precedents. Thus, beyond the
^Materials that are not classified or otherwise protected will be available for viewing by
the detainee. Detainee's counsel in most instances will be able to view classified materials. In
some cases, highly sensitive information will only be disclosed to the court for in camera review,
and not to detainee's counsel. As the Court cautioned inBoumediene, "the Government has a
legitimate interest in protecting sources and methods of intelligence gathering [and] and we
expect that the District Court will use its discretion to accommodate this interest to the greatest
extent possible." 128 S. Ct. at 2276 (citing United States v. Reynolds, 345 U.S. 1, 10 (1953).
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required production of material exculpatory evidence under Brady, the "[t]here is no general
constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559
(1977). Accordingly, in the criminal context, it is well established that the Due Process Clause
requires no open-ended discovery beyond the prosecution's Brady obligations. Ibid.; see Gray v.
Netherland, 518 U.S. 152, 167-68 (1996); Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) ("[a]
defendant's right to discover exculpatory evidence does not include the unsupervised authority
to search through tiie [Government's] files"); Kyles v. Whitley, 514 U.S. 419, 437 (1995) ("We
have never held that the Constitution demands an open file policy (however such a policy might
work out in practice)"); Fed. R. Crim. P. 16, 1975 Advisory Cmte. Notes ("the defendant has no
constitutional right to discover any of the prosecution's evidence (unless it is exculpatory within
the meaning of Brady)"). Requiring discovery here, in the civil habeas context, is therefore not
only inconsistent with Hflmdi - which rejected the criminal discovery model as overly
burdensome - it is contrary to the Boumediene Court's reasoning that criminal-type processes
are inappropriate. 128 S. Ct. at 2269.
The Government's proposed disclosure is narrower than a prosecutor's
Brady obligations, but nonetheless satisfies any plausible discovery obligation that would be
appropriate in these proceedings. First, there is, as we have explained, no constitutionally-
derived disclosure obligations in civil cases, much less cases involving wartime status
determinations. Second, the Government's proposal, while narrower than Brady, still goes well
beyond whatHflmdi anticipated. See 542 U.S. at 528, 532. And nothing in Hamdi or
Boumediene suggested that discovery rising to the level of Brady requirements was appropriate
in these cases. Third, as we have explained, there is no constitutionally- based requirement for
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discovery in habeas cases at all, much less a constitutionally-based requirement for Brady type
disclosures. The Brady rule, after all, "trace[s] its origins to early 20th-century strictures against
misrepresentation/' Kyles, 514 U.S. at 432, but such a recent derivation is too recent to be
relevant in determining the scope of constitutional habeas under the Suspension Clause. And
because the Brady obligation stems from the Fifth Amendment's due process obligations in
domestic criminal cases, which has no application either to habeas cases or to these petitioners,
the Government's provision of material exculpatory evidence in these cases is undoubtedly a
matter of Executive discretion rather a constitutionally required element of these proceedings.
At the same time, because the Government has no interest in erroneously holding a
person who does not pose a threat to the United States and in order to implement Ha md/'s
direction that the Government submit "credible" evidence to the Court, the Government will
provide all evidence discovered by its attorneys in preparing the factual return that tends
materially to undermine the information presented in the return to support the petitioner's
classification as an enemy combatant. Cf. Brady, 373 U.S. at 87 (in domestic criminal case,
prosecutor must provide known "evidence favorable to an accused . . . where the evidence is
material either to guilt or to punishment").
While the Government will turn over material exculpatory evidence discovered by its
attorneys in preparing the factual return, the Government will not conduct an open-ended search
for evidence relating to the petitioner, exculpatory or otherwise. Imposing such a requirement
would be improper for several reasons. First, as we have explained, because there is no Brady
obligation in this context and no requirement for discovery, see supra, pp. 16-22, there also is no
obligation to conduct an open-ended search for exculpatory material; rather, at its core habeas is
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about giving petitioner an opportunity to present his best evidence to this Court. See
Boumediene, 128 S. Ct. at 2270 (habeas court must have "authority to admit and consider
relevant exculpatory evidence that was not introduced during the earlier proceeding" by the
petitioner). Second, imposing an obligation to search affirmatively for material exculpatory
evidence would be the kind of "quite extensive discovery" rejected by the controlling plurality in
Hamdi. 542 U.S. at 528. Finally, such an approach would be extraordinarily burdensome in a
time of ongoing war, see BismuUah III, 514 F.3d at 1301-02 (Henderson, J. dissenting). The
United States military and our intelligence agencies cannot be required to devote substantial
resources in a time of war for evidentiary fishing expeditions. It is therefore not the "prudent
and incremental" approach to factfinding that the Hamdi plurality required in this context.
Hamdi, 542 U.S. at 539; Boumediene, 128 S. Ct. at 2262 ("habeas procedures" should be
"modified to address" "practical barriers").
We have explained how the Government's voluntary disclosure more than satisfies any
discovery obligation that could conceivably be appropriate in this context. On the other hand,
the D.C. Circuit's vacated Bi'smunah decision, which created an expansive appellate record
based on the specific requirements of Combatant Status Review Tribunal procedures, does not
provide a helpful guidepost for determining the scope of disclosure or discovery in habeas
proceedings, for four reasons. See BismuUah v. Gates, 501 F.3d 178, 192 (D.C. Cir. 2007).
First, BismuUah was wrongly decided, garnered the support of less than a majority of the en banc
court, and has been vacated by the Supreme Court. See BismuUah v. Gates, 514 F.3d 1291,
1298-99, 1306 (D.C. Cir. 2008) (four judges agreed with panel decision; five judges disagreed;
and one voted against en banc to avoid delaying the resolution of Boumediene) {BismuUah III).
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The court erred by conflating tiie scope of tiie appellate record with the issues tiiat are reviewable
by the court and by adopting a review function for itself that went well beyond the narrow
review intended by Congress. Second, the BismuUah decision went well beyond even a
prosecutor's Brady obligations, which we have already shown are not required in this context.
See BismuUah v. Gates, 503 F. 137, 140 (D.C. Cir. 2007) {BismuUah 11) (whether or not ruling
"impose[s] ... a greater obligation to 'turn over' exculpatory evidence . . . than [Brady]" is
"irrelevant"). Third, BismuUah addressed the requirements of a unique regulatory and statutory
scheme that is not at issue here. See CSRT Procedures, Enc. 1, § (E)(3) (defining "Government
Information"); id., Enc. 2 (discussing role of the CSRT Recorder in reviewing Government
Information). The D.C. Circuit in no way suggested that its expansive and unprecedented
definition was constitutionally required, but rather was simply that panel's reading of the
operative regulations for CSRTs. BismuUah II, 503 F.3d at 140. Fourtii, BismuUah created an
expansive and overbroad appellate record primarily to address the Court's concern that a CSRT
determination is not "the product of an open and adversarial process . . . [but] is the product of a
necessarily closed and accusatorial process," in which the detainee lacked a meaningful
opportunity to submit his own evidence. BismuUah III, 514 F.3d at 1296 (Ginsburg, C. J.,
concurring in denial of rehearing en banc); see also Boumediene, 128 S. Ct. at 2270. Here, on the
otiier hand, the record before a habeas court will be the result of an adversarial process where
each petitioner has an opportunity to submit his own evidence, with the assistance of counsel.
In sum, the Government will provide the evidence discovered by its attorneys in
preparing the factual return that tends materially to undermine the information presented in the
return to support the petitioner's classification as an enemy combatant - a voluntary disclosure
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that goes well beyond what Hamdi envisioned for a U.S. Citizen and is not constitutionally
required, but that will assist this Court in reviewing these habeas cases.
3. Even if the Court concluded additional discovery were constitutionally required, it
should occur only very rarely, and each specific discovery request must be approved by the
district court, as is contemplated by rules for statutory habeas. Such an extraordinary request
should be granted only after the district court has decided that other less intrusive steps cannot
resolve the issue, and the discovery authorized must itself be incremental. See Hamdi, 542 U.S.
at 539 (factfinding must be "both prudent and incremental"); Boumediene, 128 S. Ct. at 2262
("habeas procedures" should be "modified to address" "practical barriers"). Discovery that is
not both extraordinarily rare and narrow is also antithetical to the expedited disposition of the
over 200 cases at issue.
We have explained that neither Hamd! or Boumediene called for any discovery in this
context; Hamdi, instead, reversed a discovery order and Boumediene identified the
constitutionally-required elements of habeas proceedings but in no way suggested that discovery
was one of those elements. Thus, in the rare case where a court considers ordering discovery, as
the Supreme Court instructed in Hamdi, it is imperative that this Court "proceed with the caution
. . . necessary in this setting" to create a "process that is both prudent and incremental." Hamdi,
542 U.S. at 539. The controlling opinion in Hamdi made clear that the procedures and
factfinding mechanisms available to detainees should reflect their "'probable value' and the
burdens they may impose on the military." Id. at 533 (quoting Mathews, 424 U.S. at 335); see
Boumediene, 128 S. Ct. at 2262 ("habeas procedures" should be "modified to address" "practical
barriers").
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In weighing the probable value of discovery or testimony against the burdens created, the
Court should be limited by statutory habeas practice, including the rules adopted by the Supreme
Court to govern statutory habeas proceedings, which set a ceiling, not a floor, for proceeding
under constitutional habeas. Habeas corpus proceedings are civil actions but are not subject to
all rules or statutes governing civil actions. Indeed, "it is clear that there was no intention to
extend to habeas corpus, as a matter of right, the broad discovery provisions which, even in
ordinary civil litigation, were "one of the most significant innovations" of the rules. Hickman v.
Taylor, 329 U.S. 495, 500 (1947). Thus, rules for statutory habeas substantially limit the
availability of discovery by requiring leave of the court, following a showing of good cause,
before a specific discovery request is allowed. See Habeas Rule 6(a) (codifying Harris v.
Nelson, 394 U.S. 286 (1969)); see also Bracy v. Gramley, 520 U.S. 899, 904 (1997) ("A habeas
petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of
ordinary course."). A discovery request must be quite specific: it must "provide reasons for the
request" and "include any proposed interrogatories and requests for admission, and must specify
any requested documents." Habeas Rule 6(b).
As the Supreme Court explained in Harris, the extensive discovery contemplated by the
Federal Rules of Civil Procedure is "ill-suited to the special problems and character of [habeas]
proceedings," 394 U.S. at 296, observing that ordinary discovery procedures can be
"exceedingly burdensome and vexatious." Id. at 297; see 28 U.S.C. § 2243 (habeas court "shall
summarily hear and determine the facts"). As the Court recognized, the burden on the
Government, "which is necessarily and properly incident to the processing and adjudication of
habeas corpus proceedings, would be vastly increased" by allowing ordinary discovery, and "the
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benefit to prisoners would be counterbalanced by the delay which the elaborate discovery
procedures would necessarily entail." Harris, 394 U.S. at 297.
Such concerns apply with particular force in the expedited consideration of petitions filed
by over 200 detainees. As the Court noted in Hamdi, discovery raises several governmental
concerns, including the need to protect intelligence, the need to avoid "discovery of various
military affairs/' and the risk of "futile search[es] for evidence buried under the rubble of war."
542 U.S. at 528, 532; see also In re Iraq and Afghanistan Detainees Litigation, 479 F. Supp. 2d
at 105 ("The discovery process alone risks aiding our enemies by affording them a mechanism to
obtain what information they could about military affairs and disrupt command missions by
wresting officials from the battlefield to answer compelled deposition and other discovery
inquiries . . ."); Al Odah v. United States, 329 F. Supp. 2d 106, 106-07 (D.D.C. 2004) (holding
that enemy combatants were required to request leave from the court before serving their
discovery requests, and denying their request for leave to conduct discovery as premature and
inadequately substantiated).
Discovery can be authorized properly only as a last resort - if it all - if the submissions
otherwise fail to show that the detention is lawful, and only if other "incremental" steps, Hamdi,
542 U.S. at 539, such as the expansion of the record pursuant to habeas Rule 7, is ineffective.
See Habeas Rule 7(b) (allowing submission of affidavits to expand the record "[i]f the petition is
not dismissed"); Rule 7, 1976 Advisory Committee Notes ("[t]he purpose [of Rule 7] is to enable
the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time
and expense required for an evidentiary hearing").
It is thus a petitioner's burden to show, on the basis of "specific allegations" that "if the
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facts are fully developed" he may be "entitled to relief." Bracy, 520 U.S. at 908-09 (quotation
marks omitted); cf. O.K. v. Bush, 344 F. Supp. 2d 44, 56 (D.D.C. 2004) (denying hearing in
habeas action involving Guantanamo detainee because hearing was not relevant to relief sought);
Rich V. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (affirming denial of discovery and
evidentiary hearing because petitioner failed to explain how "habeas relief might be available if
favorable evidence were developed" and because evidentiary process in habeas proceedings
"was never meant to be a fishing expedition"); Williams v. Bagley, 380 F.3d 932, 974 (6th Cir.
2004) (holding that "[c]onclusory allegations are not enough to warrant discovery" in habeas
proceedings); see also Hamdi, 542 U.S. at 538 (holding that petitioner must be given an
opportunity "to present his own factual case" (emphasis added)).
Moreover, were the Court to find additional discovery constitutionally required, such
discovery must itself be "incremental," Hamdi, 542 U.S. at 539. For example: limited
interrogatories or requests for admission must be sought prior to depositions; document requests
must be considered only after requests for admission, and must be narrow and focused on
specific documents, not open-ended. To this end, as provided for in the federal habeas rules,
petitioner's requests for leave to take discovery must be "accompanied by a statement of the
interrogatories or requests for admissions and a list of the documents, if any, sought to be
produced," Habeas Rule 6(b), so that the court can properly determine whether discovery is
required and, if so, ensure that the petitioner employs the least intrusive or burdensome means to
gamer the discoverable information. Further care must be taken to safeguard the Government's
"legitimate interest in protecting sources and methods of intelligence gathering." Boumediene,
128S.Ct.at2276.
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Such concerns, and the exigencies of considering over 200 cases on an expedited basis,
strongly indicate that if discovery beyond the Government's voluntary disclosures is to be
permitted, it should, at least in the first instance, take the form of specific Court- approved
interrogatories that may be answered by any appropriate Government personnel possessing the
requisite knowledge. The Court should also allow the Government the opportunity to suggest
substitute proceedings for actual depositions involving other detainees or substitutes for
discovery requested as to certain types of information. To do otherwise would be impracticable
in this context, would not be incremental or prudent, and would do nothing to ensure that
petitioners obtain "prompt" adjudication of their claims, Boumediene, 128 S. Ct. at 2275.'
C . The Presentation of Evidence.
In the rDnrial course of these cases, the Govemnient expects that the
decide individual cases on the written record Although in maiiy cases a hearing in v\Mch
counsel may argue about the significance of the record presented will be appropriate, hearings
involving live witness testimoriy will be almost entirely in^propriate. What Ha mdi and
^ Even under the Federal Rules of Civil Procedure's far more generous provisions for
discovery, a court may limit the methods or extent of discovery when "the burden or expense of
the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(c). On that basis,
courts have held that in certain instances, for example, interrogatories are the most appropriate
discovery method. See, e.g., Kyle Eng'g Co. v. Kleppe, 600 F.2d 226, 231-32 (9th Cir. 1979)
(holding that interrogatories were more appropriate than deposing a high-ranking Government
official); Am. CM Liberties Union v. Gonzales, 237 F.R.D. 120, 122-23 (E.D. Pa. 2006)
(finding plaintiffs had not shown that oral deposition was the "least intrusive or burdensome
means" of discovery and instead allowing plaintiffs to serve interrogatories); Fed. Sav. & Loan
Ass'nv. Fed. Home Loan Bank Bd., 96 F.R.D. 619, 621-22 (D.D.C. 1983) (denying plaintiff's
request to depose two members of the Federal Home Loan Bank Board on the ground that
plaintiff had not shown "that the information it hope[d] to elicit from them is not ascertainable
by way of interrogatories addressed to the Board, the deposition of a single spokesman
designated to testify for it, or the testimony of . . . other witnesses").
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Boumediene make clear, in prescribing a "prudent and incremental" approach that recognizes
"proper deference" to the political branches in tiie "procedural and substantive standards used to
impose detention to prevent acts of terrorism/' is that evidentiary hearings with live testimony
should be the last resort, only after all other alternatives have failed. Hamdi, 542 U.S. at 539;
Boumediene, 128 S. Ct. at 2276; see id. at 2262 ("habeas procedures" should be "modified to
address" "practical barriers"). The absence of live testimony in no way presents an impediment
to the effective resolution of these cases. Courts can and should rely on affidavits from reliable
sources and intelligence gathered by agents of the United States Government in the course of
performing their sworn duties. While such evidence may not always resemble the records found
in traditional criminal cases, it is no less reliable in this context. Indeed, it is often the basis for
critical decisions involving life and death. There is neither a Sixth Amendment nor hearsay bar
to the consideration of such evidence, which Hamdi recognized would often be the most reliable
evidence in these cases.
1. A^/ailabilit]J of an Evidentiary Hearing.
As with discovery, there is no constitutional entitlement to an evidentiary hearing in
habeas cases. Historically habeas at most looked at the legal basis for detention. See, supra p.
16-19. Thus, there was no significant early history of evidentiary hearings in habeas, either in
1789 or for decades thereafter. Indeed, there were no statutory provisions at all for a hearing
prior to the 1867 Act. See28U.S.C.§ 2243. And, as with discovery, the fact that even under
modern practice outside the context of wartime status determinations, a "trial may be had in the
discretion of the federal couri;," Brown v. Allen, 344 U.S. 443, 463-64 (1953) (emphasis added),
only confirms that a testimonial hearing is not constitutionally required. Thus, while the courts
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historically have looked at the sufficiency of the factual submissions, there is no tradition of
trial-type proceedings. See Ex parte BoUman, 4 Cranch 75, 135 (1807) (determining whether
"there is . . . sufficient evidence" to "justify his commitment" based on the written record); id. at
101 (habeas is "appellate in nature"); see also St. Cyr., 533 U.S. at 306 (traditional habeas
review in executive detention context was for "some evidence"). More importantly, neither
Hamdi nor Boumediene suggested that a testimonial hearing would be appropriate or required in
these circumstances. Instead, they simply require that this Court be able to consider factual
submissions of the parties on the propriety of detention. See Boumediene, 128 S. Ct. at 2270
(what is "constitutionally required" under Suspension Clause is the"authority to admit and
consider relevant exculpatory evidence that was not introduced during the earlier proceeding");
Hamdi, 542 U.S. at 533 (Fifth Amendment requires that detainee simply have a "fair opportunity
to rebut the Government's factual assertions"). Thus, the Constitution does not require a
testimonial hearing with live witnesses, as opposed to documentary evidence and written
testimony by affidavit.
Further, Hamdi makes clear that evidentiary hearings with live testimony, if they occur at
all, will be exceptional. At its most basic level, the controlling opinion in Hamdi teaches that
courts reviewing wartime status determinations must "proceed with the caution . . . necessary in
this setting" to create a "process that is both prudent and incremental." Hamdi, 542 U.S. at 539.
The Hamdi plurality made clear that the procedures and factfinding mechanisms available to
wartime detainees should reflect their "'probable value' and the burdens they may impose on the
military." Id. at 533 (quoting Mathews, 424 U.S. at 335). Hamdi emphatically rejects the notion
that soldiers must be distracted from "the serious work of waging battle" to provide eyewitness
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accounts of actions that occurred half a world away. Id. at 531-32; see id. at 533-34 ("Hearsay,
for example, may need to be accepted as the most reliable available evidence from tiie
Government in such a proceeding."). Evidentiary hearings with live testimony also pose
heightened risks and burdens to what Boumediene recognized as the Government's obviously
"legitimate interest in protecting sources and methods of intelligence gathering." See
Boumediene, 128 S. Ct. at 2276; see also Hamdi, 542 U.S. at 532 ("discovery into military
operations would . . . intrude on the sensitive secrets of national defense"). And routine
evidentiary hearings also would conflict with the guidance from the Supreme Court, and the
strongly expressed desire of various judges of this Court, to adjudicate the Guantanamo habeas
actions as expeditiously as possible. See Boumediene, 128 S. Ct. at 2275.
For all these reasons, evidentiary hearings with live testimony should be granted only
rarely (if at all), only as a last resort, and only after the Court has reviewed the parties' written
submissions. In our judgment, evidentiary proceedings should be allowed only when the court
determines that, absent an evidentiary hearing, the weight of the evidence supports the habeas
petitioner. Cf. Schriro v. Landrigan, 127 S. Ct. 1933, 1940 (2007) ("It follows that if tiie record
refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is
not required to hold an evidentiary hearing"). As Hamdi itself suggests, at the initial stage of
written submissions, once tiie Government establishes a plausible case for detention, the
evidence is presumed correct and the detainee must then produce a traverse witii "more
persuasive" evidence for the proceedings to continue. 542 U.S. at 534. Even assuming that the
Constitution sometimes might require an evidentiary hearing with live witnesses, that issue could
not arise, consistent with the "prudent and incremental" process required by Hamdi, until after a
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detainee has rebutted the Government's initial showing with "more persuasive" evidence. 542
U.S. at 534, 539. Cf. Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (affirming denial of
discovery and evidentiary hearing because petitioner failed to explain how "habeas relief might
be available if favorable evidence were developed" and because evidentiary process in habeas
proceedings "was never meant to be a fishing expedition"). Indeed, even under modem statutory
habeas outside the context of wartime status determinations, a habeas court must "summarily
hear and determine the facts, and dispose of the matter as law and justice require." 28 U.S.C. §
2243. Thus, "the district court need not hold an evidentiary hearing for each habeas petitioner."
Tijerina v. Thornburgh, 884 F.2d 861, 866 (5th Cir. 1989) (citing Kau/man v. United States, 394
U.S. 217 (1969); Harris v. Nelson, 394 U.S. 286 (1969)).
Under these principles, at an absolute minimum, insubstantial disputes should not give
rise to an evidentiary hearing with live testimony. For example, a petitioner should not be
permitted to haul United States servicemembers away from the battlefield if a knowledgeable
affiant testifies that a detainee was captured with missiles and the detainee simply makes a
general denial, because doing so would completely undermine the Hamdi burden- shifting
framework. With the assistance of counsel, petitioners should have an unfettered ability to
present their best evidence, and to challenge the Government's evidence, through written
submissions. That by itself is far more than the process historically available in habeas. To the
extent that petitioners wish to go even further, and to demand an evidentiary hearing with live
witnesses, the courts should defer ruling on those demands until after reviewing the written
submissions, and should grant them rarely if ever. As even modem statutory habeas practice
makes clear, habeas courts "summarily hear and determine the facts." 28 U.S.C. § 2243.
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2. Confrontation and Compulsory Process Rights.
No constitutional provision gives rise to confrontation and compulsory process rights for
habeas review of wartime status determinations governing aliens captured and held abroad as
enemy combatants.
First the Sixth Amendment rights to confrontation and compulsory process are limited
by the terms of the Constitution to criminal proceedings. See U.S. Const, amend. VI ("[i]n all
criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses
against him; to have compulsory process") (emphasis added). It establishes a tial right that
applies exclusively to criminal tials. See California v. Green, 399 U.S. 149, 157 (1970) ("[I]tis
this literal right to 'confront the witness at the time of trial that forms the core of the values
furthered by the Confrontation Clause."). Thus, the Supreme Court has held that the Sixth
Amendment does not compel the presence of a prisoner in collateral proceedings. See United
States V. Hayman, 342 U.S. 205, 222 (1952) ("The existence of power to produce the prisoner
does not of course, mean that he should be automatically produced in every Section 2255
proceeding. This is in accord with procedure in habeas corpus actions."). Habeas is not of
course, a criminal proceeding, so the rights conferred by the Amendment do not apply. See
Coleman v. Balkcom, 451 U.S. 949, 954 (1981) (Marshall, J., dissenting from denial of
certiorari) ("A habeas corpus proceeding is, of course, civil rather than criminal in nature, and
consequently the ordinary Sixth Amendment guarantee of compulsory process . . . does not
apply."); Oken v. Warden, MSP, 233 F.3d 86, 93 (IstCir. 2000) (same). Accordingly, the Sixth
Amendment does not confer on petitioners a right to compel the production of military personnel
who provided evidence to the habeas court.
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The Suspension Clause also does not confer a right of confrontation or compulsory
process in constitutionally-based habeas proceedings. Instead, Boumediene created a limited set
of Suspension Clause rights to allow the petitioner to submit his own evidence to expand the
record, but did not address the issue of compulsory process and nowhere suggested that there
was a right to bring into court those individuals who provided affidavits in support of detention.
The Fifth Amendment also does not entitle petitioner to compulsory process or
confrontation. First, it is doubtful whether the detainees here have rights conferred by the Fifth
Amendment at all. See Verdugo-Urquidez, 494 U.S. at 273; Agostini, 521 U.S. at 237-38. In
any event, even if the Fifth Amendment applies it cannot encompass confrontation or
compulsory process because Hamdi very plainly explained that detention could be justified
based upon information about a detainee's capture made by "a knowledgeable affiant" who
would "summarize [the Government's] records." Hamdi, 542 U.S. at 534. While a petitioner
must have an opportunity "to present his own factual case to rebut the Government's return,"
that opportunity does require a right to obtain testimony of the affiant. Id. at 538.
In other contexts, the Supreme Court has recognized that district courts have the
discretion to order a prisoner produced at in a collateral review proceeding in which "there are
substantial issues of fact as to events in which the prisoner participated," Hayman, 342 U.S. at
223 (noting that "[w]hether the prisoner should be produced depends upon the issues raised by
the particular case"). However, Hayman involved modem practice under the habeas statute and
rules, as opposed to the traditional, eighteenth-century practice enshrined in the Suspension
Clause. Moreover, Hayman did not involve wartime status determinations, and Boumediene and
Hamdi make clear that the standards are fundamentally different in this context. Finally,
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Hayman did not involve aliens detained outside sovereign United States territory. This
distinction is critical because courts lack tiie authority to order aliens admitted into the United
States: "[T]he conditions of entry for every alien . . . have been recognized as matters . . . wholly
outside the power of [courts] to control." Fiallo v. Bell, 430 U.S. 787, 796 (1977). That power
is constitutionally assigned to the political branches. U.S. ex rel. Knauffv. Shaughnessy, 338
U.S. 537, 542 (1950). Accordingly, as Judge Robertson has correctly concluded, even under
modem statutory habeas, the district courts cannot order into the United States even a
Guantanamo detainee who already has succeeded on the merits of his habeas petition. Qassim v.
Bush, 407 F. Supp. 2d 198, 202-03 (D.D.C. 2005). A fortiori, the Court cannot order, under
narrower constitutional habeas, the admission into the United States of a Guantanamo detainee
who may wish to testify on his behalf during ongoing proceedings.
If a court should determine that the detainee's participation (or another detainee's
participation) in a hearing is essential to the Court's adjudication, the Court could permit
participation by telephone or video conference from Guantanamo. Such an approach would give
the detainee more process than is constitutionally compelled, while at the same time eliminating
the grave separation-of-powers and security concerns that otherwise would apply.
3. Admissibility of Hearsay Evidence.
Hamdi establishes that hearsay will be the norm, not the exception, in the parties'
submissions both in the factual return and traverse, and during an evidentiary hearing if one is
required. As the controlling plurality explained, "[h]earsay . . . may need to be accepted as the
most reliable available evidence from the Government" in these habeas proceedings. Hamdi,
542 U.S. at 533-34. That statement does not set forth a standard for admissibility, but rather
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identifies what is likely the best evidence available for enemy combatant determinations given
the wartime context that led to these detentions. Indeed, the Hamdi plurality specifically
directed the lower courts to consider the second-hand statements of Government officials
regarding a detainee's actions and tiie circumstances of the detainee's capture, where the official
is familiar with relevant Government practices and has reviewed the Government's "records and
reports." See id. at 512-13, 534, 538 ("a habeas court . . . may accept affidavit evidence like that
contained in the Mobbs Declaration").
This principle is critical. Without it, soldiers would be summoned back from remote
battlefields to testify to the circumstances of distant captures. Intelligence reports might be
excluded without live, in-court testimony from confidential sources. A tip from a custodial
interrogation in the field could require the in-court appearance of military interrogators, or even
the present or former detainee subject to the interrogation. None of these absurd consequences is
remotely compelled by traditional wartime or habeas practices, by the Fifth Amendment or the
Suspension Clause, or by Hamdi andBoumediene.
To the contrary, as the Supreme Court recognized in Hamdi, "military officers who are
engaged in the serious work of waging battle would be unnecessarily and dangerously detracted
by [developing the case in chief for] litigation half a world away," by a judicially- made
prohibition against the use of hearsay evidence to support wartime status determinations.
Hamdi, 542 U.S. at 531-32. In war there is no evidence room and chain of custody procedures.
Evidence of combatancy {i.e., weapons) is generally destroyed, not retained. Indeed, much of
the physical evidence may be "buried under the rubble of war." Hamdi, 542 U.S. at 532.
Moreover, the events giving rise to the military detention of the Guantanamo detainees took
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place overseas, where the Government does not have the same freedom to operate. Additionally,
because habeas proceedings could result in the erroneous release of enemy combatants (as has
the Department of Defense administrative review process, which the Supreme Court has held to
be an inadequate substitute for habeas), requiring the live testimony of soldiers or others
involved in the war effort could easily jeopardize their safety. See Boumediene, 128 S. Ct. at
2276 (habeas procedures must ensure protection of intelligence sources).
Even if the Constitution required some limits on consideration of hearsay, those limits
would surely devolve to the weight the habeas court should give to the evidence rather than the
question of admissibility. The hearsay rule is "grounded in the notion that untrustworthy
evidence should not be presented to the triers of fact" and the view that "[o]ut-of-court
statements . . . lack the conventional indicia of reliability: they are usually not made under oath
or other circumstances that impress the speaker with the solemnity of his statements; the
declarant's word is not subject to cross-examination; and he is not available in order that his
demeanor and credibility may be assessed by the jury." Chambers v. Mississippi, 410 U.S. 284,
298-99 (1973) (citing Green, 399 U.S. at 158). Nonetheless, considerations of "trustworthiness"
or "reliability" routinely justify the admission of hearsay pursuant to numerous well-recognized
exceptions. See, e.g.. United States v. D'Anjou, 16 F.3d 604, 610 (4th Cir. 1994); Guam v.
Ignacio, 10 F.3d 608, 612 (9th Cir. 1993); Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 277 (5th
Cir. 1991); Gass v. United States, 416 F.2d 767, 772 (D.C. Cir. 1969). Moreover, although the
Federal Rules of Evidence governing introduction of hearsay encompass bench trials, the courts
have repeatedly recognized that the hazards associated with the introduction of hearsay evidence
before jury trials apply with much diminished force in trials before a judge. See, e.g.. United
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States ex rel. Ford v. Pate, 425 F.2d 178, 180 (7th Cir. 1970) (admission of potential hearsay
"occurred during a bench trial which reduced the likelihood of prejudice"); see also United
States V. Cardenas. 9 F.3d 1139, 1155 (5th Cir. 1993); Gulf States Utilities Co. v. Ecodyne
Corp., 635 F.2d 517, 519 (5tii Cir. 1981) ("The exclusion of this evidence under Rule 403's
weighing of probative value against prejudice was improper. This portion of Rule 403 has no
logical application to bench trials."). Accordingly, in civil bench trials, "many experienced
judges admit hearsay tiiey deem reasonably reliable and probative, eitiier 'for what it is worth' or
on some more explicit rejection of the hearsay rule and its some 30 exceptions." Cobell v.
Norton, 224 F.R.D. 1, 5 (D.D.C. 2004) (citing McCormick on Evidence, 137 (2d ed. 1972), and
Kenneth C. Davis, Hearsay in Nonjury Cases, 83 Harv. L. Rev. 1362 (1970)) (internal citations
omitted). Moreover, in pretrial detention hearings before a judge. Congress expressly
provided that the limitations on hearsay do not apply. 18 U.S.C. § 3142 ("The rules concerning
admissibility of evidence in criminal trials do not apply to the presentation and consideration of
information at the hearing.").
Thus, to the extent that any constitutional question is presented at all, the issue in these
cases would be not whether hearsay evidence should be admitted, but what weight particular
evidence should be accorded in a particular proceeding. Exclusion of hearsay, which must be
reviewed by the judge in any event, would serve no useful purpose. To the contrary, allowing
battles over the admissibility (rather than the probative value) of hearsay evidence would only
impede the expedited resolution of these cases. In contrast, "[i]t is well settled that in a non-jury
trial the introduction of incompetent evidence does not require a reversal in the absence of an
affirmative showing of prejudice. The presumption is that the improper testimonial evidence,
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taken under objection, was given no weight by the trial judge and the Court considered only
properly admitted and relevant evidence in rendering its decision." United States v. McCarthy,
470 F.2d 222, 224 (6th Cir. 1972); see also Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971) (noting
that in nonjury cases there will typically be no reversal for the erroneous reception of evidence);
Can-Am Engineering Co. v. Henderson Glass, Inc., 814 F.2d 253, 255 (6th Cir. 1987) (holding
that it makes no difference whether evidence is admitted or not in a court trial where the record
did not indicate that judge used the testimony in his decision).
Of course, in weighing the hearsay evidence, "the Constitution would not be offended by
a presumption in favor of the Government's evidence." Hamdi, 542 U.S. at 534. Indeed, in light
of the unique context in which these habeas cases arise and the primary issue involved, i.e.,
whether the United States may legally detain combatants to prevent them from returning to the
battlefield, such a presumption is both appropriate and necessary. The costs of an erroneous
determination against the Government - which could ultimately result in the deaths of more
American soldiers or civilians, either on the field of battle or from terrorist attacks - are grave.
Thus, evidence submitted by the Government, including hearsay evidence, can and must be
accorded appropriate weight.
* * *
As discussed, the proposed framework addresses the principles set forth by the Supreme
Court in Hamdi and Boumediene. Those principles permit meaningful judicial review of
wartime status determinations, while at the same time recognizing that "enemy combatant
proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a
time of ongoing military conflict." Hamdi, 542 U.S. at 533; see also Boumediene, 128 S. Ct. at
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2276 ("In considering both the procedural and substantive standards used to impose detention to
prevent acts of terrorism, proper deference must be accorded to the political branches.").
Moreover, absent a clear and limited framework of this sort, the expedited resolution of hundreds
of pending petitions will be impossible. Therefore, we respectfully request that the Court enter
the Government's proposed case management order.
Dated: July 25, 2008 Respectfully submitted,
GREGORY G.KATSAS
Assistant Attorney General
JOHNC.O'QUINN
Deputy Assistant Attorney General
/s/ Alexander K. Haas
JOSEPH H. HUNT (D.C. Bar No. 431134)
VINCENT M. GARVEY (D.C. Bar No. 127191)
JUDRY L. SUBAR (D.C. Bar No. 347518)
TERRY M. HENRY
AUGUST E. FLENTJE
ALEXANDER K.HAAS
PAUL AHERN
Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel: (202)514-1278
Fax: (202) 514-7964
Attorneys for Respondents
41